Background
Sheree N. Bryant worked for the West Virginia Higher Education Policy Commission. In 2022, she filed a hostile work environment grievance. During discovery in that proceeding, she received surveillance camera videos from the Commission’s office hallways that included audio recordings. Bryant was unaware the cameras were recording audio and alleged she had not consented to audio recording of her conversations.
In October 2022, Bryant sued the Commission alleging violations of West Virginia’s Wiretapping and Electronic Surveillance Act, invasion of privacy, hostile work environment and sexual harassment, negligent infliction of emotional distress (NIED), and intentional infliction of emotional distress. She sought class certification for all current and former Commission employees who worked in the building since April 1, 2019, where video surveillance cameras recorded activity. The Commission moved to dismiss under Rule 12(b)(6), and the circuit court granted the motion, dismissing the Wiretap Act, invasion of privacy, and NIED claims while denying class certification. Bryant subsequently voluntarily dismissed the remaining claims.
The Court’s Holding
The Intermediate Court of Appeals affirmed the circuit court’s dismissal and denial of class certification. On class certification, the court held that Bryant failed to satisfy the four prerequisites of Rule 23(a). She did not allege facts showing numerosity (she acknowledged not knowing the class size), failed to allege specific facts supporting commonality and typicality beyond reciting rule language, and provided no factual basis for adequate representation of the class.
Regarding the Wiretap Act claim, the court held that the Commission itself is not a “person” under West Virginia Code § 62-1D-12. The statute defines “person” to include individuals and agents of the state, but not state agencies themselves. Therefore, the Commission cannot be held liable under the Wiretap Act, and the claim was properly dismissed.
On the invasion of privacy claim, the court held that Bryant failed to allege sufficient facts supporting a reasonable expectation of privacy. She alleged only that cameras were installed in common workplace hallways without alleging facts showing covert recording or cameras in private areas like offices or restrooms. General assertions of privacy expectations without factual support are insufficient. Regarding NIED, the court noted that West Virginia recognizes such claims only in limited circumstances (witnessing family injury, exposure to deadly disease, mishandling of a corpse). Bryant’s allegation that learning of audio recordings “greatly upset her” without any claim of severe emotional distress or treatment sought fell far short of the required severity threshold.
Key Takeaways
- State agencies are not “persons” subject to West Virginia’s Wiretapping and Electronic Surveillance Act, limiting remedies against government recording practices.
- Workplace surveillance in common areas (such as hallways) may not constitute an actionable invasion of privacy even if audio is recorded.
- Class certification requires specific factual allegations supporting each Rule 23(a) prerequisite; bare recitation of rule language is insufficient.
- Negligent infliction of emotional distress requires allegations of severe emotional distress meeting recognized psychological standards, not mere upset or displeasure.
Why It Matters
This decision significantly curtails privacy protections for state employees against government workplace surveillance. By excluding state agencies from the Wiretap Act’s reach, the court eliminated a key statutory remedy for employees whose conversations are recorded. The holding on invasion of privacy—that common workplace areas lack reasonable privacy expectations—reflects a restrictive approach to electronic privacy in employment contexts, potentially permitting broader surveillance practices by public employers than private employers might face.
For practitioners, the decision reinforces that class certification demands are serious: boilerplate allegations reciting rule language will not survive motions to dismiss. The case also demonstrates West Virginia’s narrow recognition of NIED claims in the employment context, requiring more than emotional upset or offense to survive pleading standards.